Nairobi — The International Criminal Court (ICC) Appeals Chamber is soon expected to make a landmark ruling on application of Rule 68 which is likely to strengthen or weaken the prosecution's case against Deputy President William Ruto and journalist Joshua arap Sang.
ICC Prosecutor Fatou Bensouda, after closing her case against Ruto and Sang in September last year, asked the Trial Chamber to issue a ruling on admissibility of Rule 68 before the case moves to the defence stage.
Next Thursday and Friday, Ruto and Sang will be at The Hague for hearing of oral submissions of their motions of no-case-to-answer which seek to terminate the case.
Trial Chamber V (a) which is hearing the case against Ruto and Sang allowed Bensouda to use primary evidence of five witnesses who had recanted their evidence under Rule 68.
The decision elicited legal and political dissatisfaction with the court being accused of violating an agreement made during the 12th session of the Assembly of States Parties (ASP) in 2013.
As politicians criss-crossed the country to demand non-application of the rule retroactively, defence teams of Ruto and Sang resorted to a legal battle and moved to the Appeals Chamber to challenge the decision.
Kenya, Uganda and Namibia which were also opposed to application of Rule 68 requested to be allowed to submit their views but were denied the chance by the Trial Chamber.
The Africa Union (AU) was however allowed to submit views which incorporated the position held by the three countries.
The Appeals Chamber in its decision will consider submissions of the defence teams of Ruto and Sang, the AU, the prosecution and the victims' legal representatives.
Both AU and the defence teams argue that Rule 68 was passed in 2013 but on condition that it would not be applied retrospectively.
The prosecution and the victims' legal representative Wilfred Nderitu on the other hand want the Appeals Chamber to uphold the Trial Chamber's decision.
Bensouda in her efforts to secure evidence of the five witnesses has explained to the judges that her witnesses were interfered with and forced to recant their evidence.
So far, the ICC has issued warrant of arrests against three Kenyans accused of interfering with prosecution witnesses.
Bensouda when commenting on witness interference announced that investigations were ongoing to expose more people interfering with witnesses and it is understood that three more sealed arrest warrants have been served.
The Appeals Chamber will soon confirm the decision made by the Trial Chamber or reject it.
Should the chamber dismiss application of Rule 68 which allows admission of prior recorded statements, the prosecution has expressed concerns that it will suffer a big blow in its efforts to tighten charges against Ruto and Sang.
Bensouda while requesting the Trial Chamber to allow use of prior recorded statements of five of her witnesses who had recanted, said without their prior recorded statements she would be 'deprived of a significant portion of the incriminating evidence' against the two.